Donald Trump ‘Fine’ With Prosecuting U.S. Citizens at Guantánamo

Donald J. Trump said this week that he was “fine” with prosecuting American citizens accused of terrorism offenses before a military commission at Guantánamo Bay, Cuba, rather than a civilian court on domestic soil.

Mr. Trump, the Republican presidential nominee, made his remarks as an off-the-cuff response to an interviewer’s question. But if Mr. Trump were elected and followed through on his impulse, the move would face legal, political and practical obstacles, specialists said.

During an interview on Thursday with The Miami Herald, a reporter brought up Mr. Trump’s earlier vow to keep the Guantánamo wartime prison open and “load it up with some bad dudes.” President Obama, by contrast, is pushing to close it and has refused to bring new captives there.

“Would you try to get the military commissions, the trial court there, to try U.S. citizens?” the reporter asked.

Mr. Trump responded: “Well, I know that they want to try them in our regular court systems, and I don’t like that at all. I don’t like that at all. I would say they could be tried there, that would be fine.”

The Military Commissions Act, which governs the tribunals system, does not permit using it for American citizens. While Congress could change that, Mr. Trump’s position was outside the usual spectrum of views about prosecuting terrorism suspects.

Soon after Mr. Obama became president, he decided to keep a modified version of the commissions system he inherited from the Bush administration, but gave it only a limited role.

The Obama administration has used it only for a handful of foreign detainees who were already at Guantánamo when he took office. It has prosecuted newly captured suspects — both foreigners and American citizens — in civilian court.

Many Republican lawmakers maintain that the commissions, not civilian court, should be used for all foreign terrorism suspects. But that is different from arguing that American citizens should also be tried in tribunals, which afford fewer rights to defendants.

“There is no buy-in on the right or the left to do this,” said Senator Lindsey Graham, a South Carolina Republican who has been one of the most outspoken advocates of using the military commissions system to prosecute foreign terrorism suspects.

Mr. Graham, who does not support Mr. Trump, also said that civilian courts had proved themselves able to handle Americans who collaborate with wartime enemies, and that using the tribunals system instead would create unnecessary legal problems.

Stephen I. Vladeck, a University of Texas law professor, said there would also be “serious” constitutional problems involving defendants’ rights to due process and jury trials.

Still, he noted, in a World War II case, the Supreme Court upheld the conviction of an American prosecuted before a commission for being a Nazi saboteur.

There are additional problems. An appeals court has called into question whether criminal offenses that civilian prosecutors often find useful for terrorism cases — providing material support for terrorism and conspiracy — may be used in a commission because those offenses are not international war crimes.

And in practice, the commissions system at Guantánamo has struggled to function except in cases involving guilty pleas.

Efforts to prosecute detainees accused of aiding the Sept. 11, 2001, terrorist attacks and the 2000 bombing of the destroyer Cole have been mired in years of pretrial hearings, with no actual trials in sight for either.

Mr. Vladeck said “it is technically possible” to use a commission to prosecute an American who committed a serious international war crime, as opposed to just being involved with a terrorist group.

But, he added, “if we have learned nothing else from the Guantánamo commissions, it is that these kinds of trials are unnecessary and incredibly inefficient.”